U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

Civil Rights Law Includes LGBT Job Bias

In a historic decision, a federal appeals court ruled that civil rights laws protect gay, lesbian, bisexual, and transgender employees from discrimination in the workplace.

It is the first time in the United States that a court has extended the 1964 Civil Rights Act to workers who identify with the LGBT community. Other courts traditionally have said that sexual orientation was not protected because it was not defined in the Civil Rights Act.

"For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person's sexual orientation," Chief Judge Diane Wood wrote for the en banc majority. "We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination."

Sexual Orientation

The U.S. Seventh Circuit Court of Appeal also took the extraordinary step of overruling three of its own judges, who decided last year that a lesbian teacher had no case for sex discrimination against her employer. The entire court set aside that decision in a divided opinion, with three of the eight justices dissenting.

Kimberly Hively is a lesbian who began teaching part-time at Ivy Tech Community College of Indiana in 2000. She repeatedly applied for full-time positions, until her contract ran out in 2014.

She then filed an administrative claim and a federal lawsuit, alleging she was denied employment based on her sexual orientation. A district court judge dismissed her case, and the Seventh Circuit panel affirmed.

The full court then agreed to hear the matter, and considered oral arguments last November. Hively was hopeful, in part, because the Equal Employment Opportunity Commission had recently said sexual discrimination laws also protected gays and lesbians.

New Societal Norms

In a concurring opinion by the en banc court, Judge Richard Posner said new societal norms require new interpretation of laws. Originally, the Civil Rights Act banned discrimination based on race, color, religion, national origin, or sex.

"The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman's being discriminated against on account of being a woman," Posner reasoned. "I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman."

Judge Diane Sykes, in dissent, said the majority was stretching the law past its limits. She said the legislature has the authority to expand the law, not the courts.

"We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions," she wrote.

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